Birmingham Fire Insurance v. Commonwealth ex rel. Kuehneisen

Mr. Justice Trunkey

delivered the opinion of the court, November 17th 1879.

At the threshold the relator is met with the objection that mandamus will not lie for the reason that, even if his right to the stock be clear and the respondents have wrongfully refused to make the transfer, he has an adequate remedy in an action on the case for damages.

A mandamus, though a prerogative writ and demandable of right in a proper case, will be granted only in extraordinary cases, where there would otherwise be a failure of justice. We have used the mandamus only as a process in the last resort; never where there was a specific remedy. Thus it was refused in The Commonwealth v. Rosseter, 2 Binn. 362, where the object was to restore the relator to a pew in an incorporated church, because he had a remedy by action for the disturbance: Drexel v. Man, 6 W. & S. 386; Reading v. Commonwealth, 1 Jones 196. In Ex parte Fireman’s Ins. Co., 6 Hill 243, where certificates of bank stock had been assigned to the relator, and, on application, the bank had refused to make the transfer, it was ruled that, “ Where a corporation improperly refuses to transfer stock, the party injured has an ample though not a specific remedy by action; and for that reason a mandamus will not lie.” The same doctrine had been held in Shipley v. Mechanics’ Bank, 10 Johns. 484, where the court, on refusing the writ, remarked that it might as well be allowed in every ease where trover would lie. To same effect are Kimball v. Union Water Co., 44 Cal. 173, and Baker v. Marshall et al., 15 Minn. 177. Norris v. Irish Land Co., 8 E. & B. 512, perhaps goes further than the decisions in this country, for, in England, the inclination of the courts has been to enlarge the remedy by mandamus. In that case stress was laid on the fact that the company was established by royal charter, which made it their duty to keep the register and insert the names of the proprietors, in which, it was said, the public are largely interested, If the courts here were inclined to enlarge the remedy, it could not be done in a case where the right is disputed, where no public interest is involved, where no reason is shown for a transfer of a specific and favorite thing, and where the remedy by action is fully adequate.

Judgment reversed.